City of Tucson v. Gallagher

• Decision Date: 15 April 1971
• Docket Number: CA-CIV
• Parties: The CITY OF TUCSON, a body politic, Appellant, v. William D. GALLAGHER and Eleanor Gallagher, husband and wife, and as parents and next friend of Janice Gallagher, Appellees. 2899.
• Court: Arizona Court of Appeals

Page 798

483 P.2d 798

14 Ariz.App. 385

The CITY OF TUCSON, a body politic, Appellant, v. William D. GALLAGHER and Eleanor Gallagher, husband and wife, and as parents and next friend of Janice Gallagher, Appellees.

2 CA-CIV 899.

Court of Appeals of Arizona, Division 2.

April 15, 1971.

As Modified on Denial of Rehearing May 28, 1971.

Review Granted June 22, 1971.

Chandler, Tullar, Udall & Richmond, by Jack Redhair, Tucson, for appellant.

Lesher & Scruggs, by James M. Sakrison, Tucson, for appellees.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Westover, Phoenix, amicus curiae.

HATHAWAY, Judge.

Janice Gallagher, a minor, was injured in an automobile accident while riding as a passenger in an automobile driven by John McMahon. The accident occurred during the early morning of February 24, 1968.

She filed suit, by her parents, against McMahon and the appellant, City of Tucson, alleging that McMahon an the appellant negligently caused her injuries. The matter was tried to a jury and judgment in the amount of $33,000 was entered on April 2, 1970, in favor of the appellees and against McMahon and the appellant. Appeal is taken from the judgment and order denying a new trial.

On the morning in question McMahon, while accompanied by the plaintiff, drove his vehicle south on Avenida Del Sol, a paved street, and turned east and drove on the dirt right of way of Golf Links Road a distance of 664 feet where he entered a ditch which ran north and south across the road. The plaintiff was thrown through the windshield. The south 22 feet of Golf Links Road was paved. The north 97 feet of the right of way was dirt and the desert growth had been graded away. This was the portion driven by McMahon.

Prior to trial appellees entered into an option agreement with McMahon which provided, as recited in appellant's opening brief:

'1. That McMahon would pay $10,000 if the case was settled prior to trial:

2. That McMahon would pay $10,000 if a jury verdict was rendered against the appellee;

3. That McMahon would pay $10,000 if a jury verdict was rendered only against McMahon, Regardless of the amount of the judgment, be it $1.00 or $100,000;

4. That if a jury verdict in excess of $10,000 was rendered against McMahon and the appellant, the appellee would satisfy the entire judgment from the appellant 5. That if a jury verdict was rendered against the apellant for any amount less than $10,000, the appellee would satisfy the judgment against the appellant and McMahon would pay appellee the difference between the judgment and $10,000.'

Appellant complains it was denied a fair trial as a result of this option agreement between codefendant McMahon and appellee. According to appellant this agreement is unethical and motivated McMahon to work for a verdict in favor of appellee. Specifically, complaint is made that McMahon's attorney asked only one question of appellee and did not cross-examine appellee or her doctors about appellee's damages and injuries and that appellee's testimony was directed only towards appellant. However, it was not incumbent on appellee to try her case equally aginst each defendant. Ulan v. Richtars, 8 Ariz.App. 351, 446 P.2d 255 (1968).

In considering this question we will not attempt to decide whether the agreement was ethically proper. That is best left to the State Bar Association. The brief of amicus curiae, supporting appellant's position, cites the California case of Pellet v. Sonotone Corp., 26 Cal.2d 705, 160 P.2d 783 (1945) in which the court had a similar agreement before it. In that case the court stated:

'While the trial court did not find, and we cannot hold as a matter of law, that there was any fraud or collusion in this case, such an agreement might lead to a fruad upon the court by concealing the position of a party who is an important witness in the action. In the present case, however, The court and the other parties were fully informed of the nature and contents of the agreement prior to the second trial, and the court or jury could weigh the testimony of defendant Compton in the light of the knowledge that, since the agreement provided that a judgment could not be enforced against him, he was not a witness who was adverse to the plaintiff.' P. 788 (Emphasis supplied)

In the case Sub judice all parties to the action and the judge knew of this agreement before the trial. McMahon, the defendant with whom the agreement was made,...